Eligibility for Grandfathering of Certain Storm Water Permit Conditions Ready to Expire

In 2010, Pennsylvania’s Environmental Quality Board published the final-form rulemaking for its amended Chapter 102 regulations relating to erosion and sediment control and storm water management (25 Pa. Code Ch. 102 ). At the time of the regulation’s development, concern was expressed by the regulated community over the impact the new rules would have on permitted construction projects that require an NPDES renewal. Specifically, there was fear that a permit renewal would trigger the need for a revised post-construction storm water management plan (PCSM Plan) on an existing project thereby potentially rendering it financially unviable.

In response, the department incorporated a “grandfathering” clause into the Chapter 102 regulations stating that “a person conducting earth disturbance activities under a permit issued before November 19, 2010 (the regulation’s effective date), and renewed prior to January 1, 2013, shall implement, operate and maintain the PCSM requirements in accordance with the terms and conditions of the existing permit. After January 1, 2013, the renewal of a permit issued before November 19, 2010, shall comply with the requirements of this section.” (See §102.8(a))

If eligible, NPDES permits (or other permits including a PCSM Plan) are renewed prior to the January 1, 2013, the new PCSM Plan receives the terms and conditions of the original permit.

Those grandfathered items include riparian buffers (§102.14), licensed professional oversight at critical stages, final certification, PCSM long-term operation and maintenance requirements (§102.8(k-m)). Additionally, those new sections of the regulation not in practice previous to November 19, 2010, are also grandfathered.It is important to note that grandfathered permittees are not exempt from meeting water quality standards through managing rate, volume, water quality and anti-degradation requirements. Applicants will need to demonstrate they are currently meeting these requirements or bring the plans into compliance.

Since 2002, the department has required by policy and practice that applicants for NPDES permits address various issues associated with rate, volume and water quality. The amended Chapter 102 regulations merely codified the performance standards that had already been in practice pre-November 19, 2010.

DEP reports that they will not require partially built-out projects to retrofit existing construction. New requirements would only apply to those “new” sections going forward under the renewed permit.

As the January 1, 2013, grandfathering deadline rapidly approaches, NPDES permit holders ideally would have already begun the renewal process. General and Individual NPDES Permits require the renewal application be submitted at least 120 and 180 days prior to expiration, respectively. However, renewals can still be submitted now. Applicants should contact their conservation district and regional DEP office to identify site-specific issues and formulate a plan of action.

Those interested in viewing a recorded webinar on the matter, or accessing presentation slides, can visit DEP’s Storm Water Management Program webpage for more information.